T.W. v. United States ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-0849
T.W., ∗ APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2018-CF2-003695)
(Hon. Todd E. Edelman, Trial Judge)
(Argued April 6, 2022 Decided April 20, 2023)
KC Bridges, Public Defender Service, with whom Samia Fam and Alice
Wang, Public Defender Service, were on the brief, for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Channing D.
Phillips, Acting United States Attorney at the time, Chrisellen R. Kolb, John P.
Mannarino, and Jamie Carter, Assistant United States Attorneys, were on the
brief, for appellee.
Before EASTERLY and DEAHL, Associate Judges, and THOMPSON, Senior
Judge.
∗
Appellant has moved that we refer to him by his initials only given that he
was sentenced under the Youth Rehabilitation Act and is eligible to have his arrest
records expunged. The United States indicated that it opposes the motion, but did
not file a written opposition or otherwise offer any reasons for its position. The
division has granted appellant’s motion.
2
Opinion of the court by Associate Judge DEAHL.
Dissenting opinion by Senior Judge THOMPSON at page 34.
DEAHL, Associate Judge: T.W. appeals his convictions for carrying a pistol
without a license and other gun-related charges, stemming from police officers
finding a loaded firearm on him after T.W. consented to a pat-down search. T.W.
argues that the trial court should have granted his motion to suppress that firearm
because it was the fruit of an unlawful seizure in violation of the Fourth Amendment.
The government concedes that, if officers did in fact seize T.W. before he consented
to a pat-down search, the seizure was unlawful, the motion to suppress should have
been granted, and we must reverse T.W.’s convictions. It contends only that T.W.
was not in fact seized when he consented to a search.
We agree with T.W. that he was unlawfully seized in violation of the Fourth
Amendment before he consented to the search, and therefore reverse his convictions.
I.
The relevant facts are largely undisputed and were captured by body-worn
camera footage submitted at the suppression hearing. Officers Dmitry Gendelman
and Krishaon Ewing of the Metropolitan Police Department were patrolling in the
3
Woodland neighborhood of Southeast, D.C., at around 5:30 p.m. one March evening.
Both officers were part of an MPD “crime suppression team,” which proactively
patrols high-crime areas for guns, drugs, and other illegal activity. The officers were
armed and in full police uniform, with Gendelman wearing a bulletproof vest “with
big white letters that say ‘Police’ . . . on the front.” They rode as passengers in a
marked police vehicle, and another marked police vehicle followed closely behind.
As they approached an apartment building at 2348 Ainger Place SE,
Gendelman saw somebody, later identified as T.W., “pop out” of a side alley
connecting the apartment building’s parking lot to the street. T.W. seemed to notice
the approaching police vehicles before he walked back into the alley toward the
apartment building’s nearby entrance. Gendelman found T.W.’s conduct suspicious,
and the vehicle’s driver sped up and then turned into the alley after T.W. As the
officers pulled up, T.W. was in front of the steps leading to the apartment building’s
entrance, set back several feet from the alley.
The first police vehicle went just past T.W. and came to a stop, with T.W.
several feet from the car’s rear passenger’s side. Gendelman and Ewing, whose hand
was on the car door’s handle as the car pulled up, quickly exited the car the moment
it stopped. Ewing exited from the front passenger’s seat and approached T.W. from
4
his right, while Gendelman exited the rear driver’s side door and walked around the
back of the vehicle, so that he approached T.W. from his left side. At that same time,
a second police vehicle pulled into the alley, and at least two officers began exiting
that vehicle, too, as Gendelman and Ewing started questioning T.W.
T.W. raised his hands in the air upon seeing the two officers exit the front
vehicle. Ewing asked T.W. whether he had a gun on him, and T.W. responded no.
Ewing and Gendelman continued approaching T.W. from each side, and Ewing
asked “You sure?” to which T.W. replied, “Yeah, I’m positive.” Gendelman then
asked, “I can pat you down just to make sure?” 1 T.W. said “Yeah,” and Gendelman
responded, “My man,” as he began to pat T.W. down. Gendelman found a gun in
T.W.’s waistband. The encounter lasted about ten seconds from when the first
officers exited their vehicle to when the pat-down search began, and it took just
about another five seconds for the officers to find the gun on T.W. He was charged
1
The trial court recounted this as “Can I pat you down just to make sure,” and
the parties do likewise in their briefs. The body-worn camera footage is clear,
however, that this statement, while inflected as a question, was phrased as a
declaration—“I can pat you down just to make sure?” While that is a subtle
discrepancy, we rely on the statement as clearly reflected in the video footage. See
Henderson v. United States, 276 A.3d 484, 489 (D.C. 2022) (applying clear error
standard “to the trial court’s factual determinations” regarding its “evaluation of the
body-worn camera footage”).
5
with carrying a pistol without a license, possession of an unregistered firearm,
unlawful possession of ammunition, and possession of a large-capacity ammunition-
feeding device. 2
Before trial, T.W. moved to suppress the gun, its magazine, and its
ammunition. He argued that he was unlawfully seized in violation of the Fourth
Amendment when he consented to a pat-down search, and that his consent was the
fruit of the illegal seizure. During a hearing on his motion to suppress, T.W. testified
that he was “scared and nervous,” never having been arrested before, and did not
think he could say “no” to Gendelman’s pat-down request. Asked why not, T.W.
responded, “Because of how they came up on me. I felt like I couldn’t walk away.”
T.W. further highlighted his youth (21 years old at the time), his “complete lack of
experience” with police, “and the fact that he was confronted by multiple officers”
who “essentially jumped out on [him] and immediately began asking accusatory
questions.”
2
D.C. Code §§ 22-4504(a) (carrying pistol without license), 7-2502.01(a)
(possession of unregistered firearm), 7-2506.01(a)(3) (unlawful possession of
ammunition), 7-2506.01(b) (possession of large-capacity ammunition-feeding
device). T.W.’s gun had an extended magazine with 28 rounds of ammunition, the
capacity to hold two additional rounds, plus the gun itself had one round in the
chamber.
6
The trial court denied the suppression motion after concluding that T.W. was
not seized before consenting to a search. The court stressed that the officers’ tone
when they engaged T.W. was “conversational,” and that the officers were not
positioned “such that [T.W.] could not have physically walked away down the street
or back into the building.” After the trial court denied T.W.’s suppression motion,
the parties agreed to a stipulated bench trial in which T.W. effectively admitted to
the elements of each offense while preserving his right to appeal the suppression
ruling. The trial court sentenced T.W. under the District’s Youth Rehabilitation Act
to an aggregate sentence of six months’ incarceration, suspended in its entirety, and
one year of supervised probation. T.W. now appeals.
II.
The dispositive question in this appeal is whether T.W. was seized when he
agreed to Gendelman’s request to pat him down. 3 The government does not contend
that officers had a lawful basis for seizing T.W. before discovering the gun in his
3
T.W. also argues on appeal that even if he was not seized, he did not
voluntarily consent to a search and, even if he did, the officer’s search exceeded the
scope of any consent. Because we conclude the seizure question is dispositive, we
need not address T.W.’s arguments related to consent.
7
waistband. 4 See generally Terry v. Ohio, 392 U.S. 1 (1968). The government further
concedes that, if T.W. was seized when he consented to a search, his consent was
the fruit of that seizure and of no legal effect because there was “no break in the
causal chain” sufficient to “purge the primary taint of the unlawful seizure.” Jones
v. United States, 154 A.3d 591, 598 & n.20 (D.C. 2017) (citations omitted).
Whether a person has been seized “is a question of law which this court
reviews de novo, deferring to the trial court’s factual findings, unless clearly
erroneous.” Dozier v. United States, 220 A.3d 933, 940 (D.C. 2019) (quoting
Jackson v. United States, 805 A.2d 979, 985 (D.C. 2002)).
A. Background Principles of Fourth Amendment Seizures
The Fourth Amendment protects individuals “against unreasonable searches
and seizures.” U.S. Const. amend. IV. While there is invariably some inherent
pressure to cooperate with police officers, “a seizure does not occur simply because
a police officer approaches an individual and asks a few questions.” Florida v.
4
Gendelman testified that T.W. did not act in a manner that would suggest he
was carrying a firearm. He was not “[b]lading [his] body away” from officers or
keeping an “[a]rm against [his] side,” for instance. Gendelman also acknowledged
he did not see any bulge in T.W.’s clothing suggestive of a firearm.
8
Bostick, 501 U.S. 429, 434 (1991). Instead, the Fourth Amendment “tolerates a
measure of official pressure in exchange for needed cooperation from the public” in
assisting law enforcement. Dozier, 220 A.3d at 943. A person can be seized in the
absence of any physical restraints, however, so long as the surrounding
circumstances would lead a reasonable person to believe they are not free to
unilaterally terminate the encounter with officers and go about their business. Jones,
154 A.3d at 598.
The crucial test in deciding whether a person has been seized is whether, “in
view of all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.” Immigr. & Naturalization Serv. v.
Delgado, 466 U.S. 210, 215 (1984) (quoting United States v. Mendenhall, 446 U.S.
544, 554 (1980) (opinion of Stewart, J.)). The reasonable person under that test is
the reasonable innocent person, not a guilty person whose criminal conduct might
give them added reason to believe they had been caught and thus could not walk
away. Bostick, 501 U.S. at 438. If consent to a search is “given contemporaneously
with the illegal seizure, with no break in the causal chain, the actions of the person
seized are not free from the taint of unlawful detention and are thus insufficient to
show consent.” Dozier, 220 A.3d at 940 (quoting Jones, 154 A.3d at 598 n.20).
9
Circumstances that might signify a seizure include the “presence of several
officers, the display of a weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice indicating that compliance with
the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554 (opinion of
Stewart, J.). To that list, we have added factors such as whether (1) the individual
“is by himself” in the area so that the police presence was apparently focused
exclusively on him, see Jones, 154 A.3d at 596; (2) the encounter is in a place “that
is secluded or out of public sight,” id.; (3) the officers are uniformed or have their
weapons visible, see id. at 595; (4) the officers have blocked the individual’s
potential exit paths or “means of egress,” Golden v. United States, 248 A.3d 925,
939 (D.C. 2021) (citation omitted); (5) the officers’ questions are “accusatory,” id.
at 935; and (6) the officers repeat accusatory questions in the face of an initial denial,
signaling that they have “refused to accept” the answer given, id. at 938. Conversely,
an encounter’s “brevity” and the officers’ “cordiality” during it are factors that often
weigh against finding a seizure. Jones, 154 A.3d at 598.
B. T.W. Was Seized Under the Fourth Amendment
T.W. argues that he was seized before he consented to a search. We agree. A
host of factors contribute to our conclusion: (1) T.W. was the only person in the area;
10
(2) two marked police vehicles, with at least three armed and uniformed officers in
each, quickly pulled into an alley after T.W.; (3) the officers positioned their vehicles
in a manner that boxed T.W. in, cutting off his two most obvious escape paths and
signaling that he was not free to leave; (4) the two officers who exited the front
vehicle approached T.W. from both sides, further obstructing his potential exits, a
third officer had exited the rear vehicle, and a fourth had their door open (though it
is unclear from the video footage if they had fully exited the car at the time T.W.
consented to a search), so that four officers were approaching T.W. before T.W.
agreed to be searched; (5) the officers asked T.W. only accusatory questions, all
suggesting they believed he had a gun on him; and (6) although T.W. twice denied
having a gun, the officers did not accept his answer and instead asked if they could
search him “just to make sure,” manifesting their disbelief in T.W. and suggesting
they were not going to let him walk away unless he could alleviate those suspicions.
Those various factors can be sorted into two broader categories: (1) the officers’
approach and (2) the officers’ questioning, which we now address in turn.
First, as to the officers’ approach of T.W., this encounter “commenced with
an impressive show of police authority.” Golden, 248 A.3d at 936. This was not an
officer (or two) on foot patrol who happened to engage a passerby in conversation.
This was at least six officers in two marked police vehicles, and they did not just
11
happen upon T.W.; they hurriedly followed him into an alley where nobody else was
around with a clear purpose to confront him. The officers stopped their cars
abruptly—one just in front of T.W., and one just behind him—and two officers
immediately exited the front vehicle, a third had exited the rear vehicle, and a fourth
at least had their door open before any consent to a search. Each of these factors
contributes to our conclusion that a person in T.W.’s shoes would not have felt free
to leave. See Dozier, 220 A.3d at 942 (police encounter is “more intimidating if the
person is by himself, if more than one officer is present, or if the encounter occurs
in a location that is secluded or out of public sight”) (quoting Jones, 154 A.3d at
596). The officers also boxed T.W. in, both in how they positioned their cars and in
how they approached him on foot from both sides. See Golden, 248 A.3d at 940
(noting that patrol cars had parked perpendicular to each other, “directly in front of
and beside” Golden, giving police “control” over his movement). T.W.’s immediate
reaction to the officers’ approach—freezing and raising his hands in the air—was a
natural response to this show of authority. 5 Id. at 936 (“[I]t is telling that [the
5
Our dissenting colleague contends otherwise, positing that a reasonable
person in T.W.’s shoes would have thought the police vehicles that sandwiched him
in were “look[ing] for someone inside the apartment building,” so T.W. raising his
hands is better seen as “consciousness of guilt” evidence. We disagree. Raising
one’s hands is an eminently sensible thing for anybody to do when swarmed by
police officers in this manner, particularly a young black man in a heavily patrolled
area. Dozier, 220 A.3d at 944 (“[A]n African-American man facing armed
policemen would reasonably be especially apprehensive.”). That is no doubt why
12
defendant] ‘froze’ and appeared nervous.”). The officers’ approach signaled that
they suspected T.W. of criminal activity (as they did) and that they would detain him
unless disabused of their suspicions.
Second, the officers’ questioning would have further indicated to a reasonable
person in T.W.’s shoes that they were not free to leave. The first thing the officers
said to T.W. when they exited their vehicles was to ask whether he had a gun. This
question gave T.W. “reason to understand that a group of police officers . . . had
singled him out and partially surrounded him because they suspected him of being
armed and committing a crime at that very moment.” Id. at 937. Asking whether
someone has a gun is not “equivalent to a simple request for information that an
officer might put to an ordinary civilian who is not a suspect.” Id. And after T.W.
answered with a “no,” Ewing again asked T.W., “You sure?”—a question conveying
that the officers were not satisfied by his denials. Such repeated “questions or
requests designed to ferret out whether someone stopped on the street is in
possession of weapons or contraband . . . can create a powerful impression to any
reasonable person that the police will not allow the suspect to terminate the inquiry
and depart before satisfying the officers’ concerns.” Id. at 935-36. Still, T.W.
neither the government nor the officers have ever suggested they believed T.W.’s
raised hands evinced a guilty conscience.
13
responded that he was “positive” he did not have a gun. Despite those repeated
denials, the officers still indicated they did not believe him when Gendelman asked
to pat him down “just to make sure.” When police “persist in suspecting [a] person
of carrying a firearm despite the person’s denial,” a reasonable person “would not
feel free to frustrate the police inquiry.” Id. at 937.
Those factors bring this case into close alignment with our recent decision in
Golden, which this court decided after the trial court issued its ruling denying T.W.’s
suppression motion. T.W. contends that Golden cannot be meaningfully
distinguished from this case. We agree. What few distinctions there are between
this case and Golden largely cut in T.W.’s favor, as we view the circumstances here
as being at least as coercive as those in Golden. T.W. also highlights another recent
case of this court, Dozier, which likewise provides strong support for T.W.’s
argument. The government, for its part, points to a handful of cases that it argues
involved more intrusive police tactics yet were upheld against Fourth Amendment
challenges, though we disagree with its description of those cases. We consider
Golden, Dozier, and the government’s contrary authorities in turn below.
14
1. Golden v. United States
In Golden, the defendant was walking alone at night when he was approached
by four officers in two patrol cars. 248 A.3d at 931. One car stopped ten to twenty
feet in front of Golden, and the other pulled up on the perpendicular street, about
seventeen feet to Golden’s left. Id. All of the officers remained seated in their
vehicles with their windows rolled down. Id. at 932. One of the officers asked
Golden if he had any weapons on him. Id. Golden said he did not. Id. The officer
responded, “Can you just show me your waistband?”—and it was at that point that
we determined that Golden had been seized. Id. (alterations omitted). “This took
the encounter beyond mere questioning,” as this request “implied the police would
view Mr. Golden with heightened suspicion if he attempted to end the encounter
without first exposing his waist.” Id. at 937. Under those circumstances, we
reasoned, a reasonable person would think that refusing the officers’ request would
confirm their evident suspicions and “only prolong their interference with the
suspect’s liberty.” Id. Golden compels the same result here. The government offers
four counterpoints in an effort to distinguish Golden, but none of the distinctions
work in its favor.
15
First, the government stresses that after Golden initially denied having a gun,
officers asked him three times to prove his assertion by showing them his waistband.
Id. at 932. That is true as a factual matter, but we did not attach any legal significance
to the fact that those requests were repeated. Rather, we concluded that the
encounter turned into a seizure upon the officer’s first request to see Golden’s
waistband—“Can you show me your waistband?”—because under the
circumstances, that indicated the officers would not take his initial denial at face
value. Id. at 937 (initial request “took the encounter beyond mere questioning”); id.
at 938 (“[T]he encounter attained the level of a Fourth Amendment seizure when the
police officer called upon the suspect to expose his waistband” and Golden
“acquiesced.”). The same is true here; “Can you show me your waistband” is no
more a command than the “I can pat you down just to be sure” that we have here.
Our dissenting colleague makes this same misstep when she tries to distinguish
Golden based on “repeated commands” that Golden show his waistband, despite the
clear immateriality of the repetition to our holding in Golden. The more pertinent
distinction is that T.W. twice denied having a gun before being asked to submit to a
search, whereas Golden only denied having a gun once, a point which cuts in favor
of finding that T.W. was seized.
16
Second, the government argues that Golden was asked to subject himself to a
“[h]umiliating” “public unveiling of part of his body,” id., and that T.W.’s pat-down
search was “less intrusive” than that. Quite the opposite. As the Supreme Court put
it more than fifty years ago, a pat-down search “is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and arouse strong
resentment.” Terry, 392 U.S. at 17. It is “simply fantastic” to suggest that it is a
“petty indignity.” Id. at 16-17; see also Bond v. United States, 529 U.S. 334, 337
(2000) (“Physically invasive inspection is simply more intrusive than purely visual
inspection.”). During a typical pat-down search, an officer will probe “every portion
of the prisoner’s body. A thorough search must be made of the prisoner’s arms and
armpits, waistline and back, the groin and area about the testicles, and entire surface
of the legs down to the feet.” Terry, 392 U.S. at 17 n.13 (citation omitted). An
officer’s hands-on search is at least as intrusive as lifting one’s own shirt to reveal
one’s waistband. Once again, any distinction on this point cuts in favor of T.W.
having been seized, as he was asked to subject himself to what is generally the more
intrusive of the two search procedures.
Third, the government stresses that Golden was “confronted by four officers”
who “blocked his path,” whereas T.W. was approached by only two officers. That’s
wrong. In Golden, there were a total of four officers in two police vehicles, none of
17
whom exited their vehicles and only one of whom had spoken to Golden at the point
when he was seized. Here, if we are to simply count the officers in the police
vehicles (as the government does for Golden), then at least six officers in two
vehicles confronted T.W. 6 Four officers were approaching T.W., with three of them
fully out of their vehicles and two of them within arm’s reach of T.W. and actively
questioning him at the time he claims he was seized. Once again, if there is a
meaningful distinction between the two cases, it cuts decidedly in T.W.’s favor.
There were six total officers in the vehicles compared to just four in Golden. At
least three of the officers were out of their cars and approaching T.W., compared to
none in Golden. Two officers were within arm’s reach of T.W., compared to none
in Golden. Two of the officers had questioned T.W., whereas only one did in
Golden. No matter how you count the officers, the physical show of force was
substantially higher here than in Golden.
Fourth, while the government argues that the officers here did not block
T.W.’s exit paths, that is inconsistent with the evidence. The first patrol car parked
6
T.W. asserts that there were seven officers in the two cars, but the testimony
he relies upon for that assertion seems to be about the number of officers on the
scene after T.W. was found to have a gun, some of whom were not in the first two
vehicles to arrive. Suffice it to say that it is evident from the body-worn camera
footage that at least six officers were in those first two cars.
18
just a few feet in front of T.W., a bit closer than the vehicles that approached Golden,
and the trailing vehicle parked behind T.W., so that the officers had him pinned in.
The officers in the front vehicle then approached T.W. quickly from both sides in a
pincer maneuver, with one approaching from his right and the other circling around
the back of the vehicle to approach T.W. from his left. There was conceivably one
exit still available to T.W. that did not go through an approaching officer—he might
have gone inside the apartment building, presuming the door was unlocked—but that
is largely beside the point. The relevant question is not whether there was some
conceivable exit path available to T.W. (though a complete lack of exits would make
a seizure even more likely). It is instead whether T.W. would have reasonably
understood the officers to be blocking his exits, not whether they were perfectly
effective in doing so. Golden, 248 A.3d at 940 (acknowledging that officers “did
not physically and totally ‘block’ Mr. Golden’s movement, [but] they at least
‘control[led]’ it by parking directly in front of and beside him, in two perpendicular
sides of a box”); id. at 939 (citing favorably a case which held there was a seizure
where officers “blocked all but one means of egress”). 7
7
Two additional points of contrast between this case and Golden cut
marginally in opposite directions. Here, nobody else was in the area, whereas in
Golden, there were other “people seen standing around in the vicinity.” 248 A.3d at
936; see Jones, 154 A.3d at 596 (“The circumstances are more intimidating if the
person is by himself . . . .”). That cuts in favor of finding this encounter more
coercive than the one in Golden. On the other hand, the encounter in Golden was at
19
The dissent posits two additional bases to distinguish Golden as “non-
analogous in significant ways,” post at 55, but the asserted distinctions are no
distinctions at all, nor would they be of any significance even if they were.
First, the dissent asserts that, unlike in Golden, the officers here did not “park
their vehicles in a way that would have conveyed to a reasonable innocent person
that he was a target of investigation.” That is a surprising view given that the officers
here sped into the alley where T.W. was the only person present and parked their
vehicles mere feet from and on both sides of him. But even if one adhered to the
dissent’s view about what the parking formation would have conveyed to a person
in T.W.’s shoes, the dissent ignores the far more potent distinction: the officers
remained in their cars in Golden, whereas here they exited their cars and walked
right toward T.W. If the manner in which they parked their police cruisers left any
room to doubt that T.W. was the target of their investigation, their subsequent direct
approach of T.W. could not possibly have, so this attempt to distinguish Golden falls
flat.
night, whereas here it was still daylight out, a point which tends to increase the
coercion evident in Golden as compared to here. Id. at 938, 945 (noting that the
encounter was at night).
20
Second, the dissent stresses that there was a “grassy walkway,” which it
sometimes refers to as a “pedestrian pathway,” between the traffic bollards and the
apartment building that provided T.W. a potential path of egress. To be clear, this
is not a walkway in any ordinary sense; it is a narrow strip of dirt and grass between
the asphalt and the apartment building, with the bollards performing their typical
function of preventing cars from running into the building, not demarcating a
pedestrian walkway. It is a walkway only in the sense that one could walk along it,
just as one might walk along a window ledge, but even if it were a more conventional
walkway that would not distinguish Golden either. Golden was on a sidewalk
walking toward a major intersection when two police vehicles parked
perpendicularly by the intersection’s curb, forming “two perpendicular sides of a
box.” 248 A.3d at 940. Nothing physically impeded Golden from continuing along
the sidewalk, or turning around on it, which is of course a far more natural
“pedestrian pathway” than the narrow patch that the dissent attaches so much
significance to. 8 It simply did not matter to our analysis in Golden that the officers
8
“Golden was walking . . . down Southern Avenue and approaching the
intersection with South Capitol Street” when the officers “pulled up to the curb” near
him. 248 A.3d at 931. While the opinion does not specify that Golden was on the
sidewalk, that is fairly obvious from the context, and the briefing makes clear that
he was. See, e.g., Brief for the United States, 2019 WL 12379403 (Feb. 7, 2019)
(Golden “was in the sidewalk area at that time. Nothing impeded [his] movement
to the right or left, or behind him.”).
21
“did not physically and totally ‘block’ Mr. Golden’s movement,” id., and it likewise
does not matter here.
2. United States v. Dozier
T.W. also asserts that Dozier, another opinion our court issued after the trial
court’s ruling, compels the conclusion that he was seized. We agree that Dozier also
counsels in favor of concluding that T.W. was seized.
In Dozier, two officers followed the defendant by foot down an alleyway at
night, as two other officers remained seated in a nearby patrol car with illuminated
blue lights. 220 A.3d at 937-38. One of the officers asked Dozier, “Hey, man, can
I talk to you?” Id. Dozier did not respond and continued walking. Id. The officer
asked again if he could talk to Dozier, who then stopped and said he could. Id. The
officer asked whether he had “any illegal weapons on him.” Id. Dozier said he did
not and lifted his jacket to show there was nothing in his waistband. Id. The officer
asked if he could pat him down “for any weapons,” and Dozier replied, “yes, you
can check me.” At that point the officer asked Dozier “to place his hands on the
[alley] wall,” and Dozier complied. Id. We concluded “there was a Fourth
Amendment seizure by the time [Dozier] submitted to the officers’ request to a pat-
down.” Id. at 941. In concluding that Dozier was seized at that point, we noted that
22
while “the officers made ‘requests’ and did so in conversational tones, without
orders, shouting, or threats,” their actions nonetheless conveyed that Dozier was not
free to decline their requests or terminate the encounter. Id. at 946-47. So too here. 9
The government counters by pointing out that Dozier had been asked five
questions before submitting to a search, compared to only three here. That is some
difference between the cases, to be sure, but it is not an important one. There were
two prefatory questions in Dozier—the repeated “hey, man, can I talk to you?”—
that did not add much to the coercion calculus, and we gave little consideration to
those questions in finding that Dozier had been seized. Far more important was the
accusatory questioning, asking Dozier whether he had “any illegal weapons on him,”
followed up with a request to conduct a pat-down search when he denied having
anything (just like here). And to the extent the two additional prefatory questions in
Dozier made the questioning in that case slightly more coercive, that extra coercion
is more than offset by the additional show of authority that the officers made here
when approaching T.W. Again, there were six officers in two police cruisers on the
9
In Dozier, we attached some significance to the fact that the defendant was
a black man in a heavily patrolled high-crime area, which we explained might
heighten the inherent coerciveness of an encounter with police officers. 220 A.3d at
943-45. T.W., too, is a black man who was in a high-crime area, though we do not
find it necessary to take that factor into account in concluding that he was seized.
23
scene here, as opposed to four officers in just one car in Dozier. And four officers
immediately began exiting their vehicles here, as compared to just two in Dozier. In
any event, this is not a formalistic numbers-matching game—X number of questions
by Y number of officers is unconstitutional—but a totality-of-circumstances inquiry.
Finally, the dissent tries to distinguish Dozier on the basis that the suspect in
that case was followed down a “secluded alley,” making it clear he was the object
of officers’ attention, positing that T.W. might instead have more reasonably thought
that officers were “respond[ing] to suspected drug activity in the building or to
citizen complaints.” Post at 58. But the dissent again seems to freeze-frame this
interaction at the moment officers parked their cars, and ignores the fact that, after
parking their cars, two officers walked right at T.W.—the only person in the area—
and began questioning him in a manner that made clear they suspected him of a
crime. No reasonable person in T.W.’s shoes could doubt they were the object of
the officers’ suspicions (as T.W. was, in fact).
3. The Government’s and Dissent’s Authorities
Unlike T.W., the government does not have a principal case or two that it
believes controls the analysis, and it instead relies on a smattering of cases for
various principles. There is some merit to that approach, as we have frequently said
24
that “‘case matching’ is of limited utility” in deciding Fourth Amendment issues,
where “[e]ach case turns on its particular facts.” Gomez v. United States, 597 A.2d
884, 889 (D.C. 1991). That said, in this particular case, Golden provides strong
support for the conclusion that T.W. was seized, and there is no countervailing
authority that resembles this case.
To the extent the government has a lead case, it is Brown v. United States, 983
A.2d 1023 (D.C. 2009), a case that we distinguished in Dozier for reasons that are
equally applicable here. See Dozier, 220 A.3d at 946 n.17. Brown involved two
police officers on foot who approached a group of five to six individuals. 983 A.2d
at 1025. One officer asked Brown if she had any guns or drugs on her, and when
she did not answer, the officer repeated her question, at which point Brown handed
her a bottle containing cocaine. Id. The show of force by the officers was
considerably lower in Brown than what we have here; the officers in Brown were far
outnumbered by the individuals in the group they approached, whereas T.W. was
outnumbered six to one in this case. More to the point, Brown never denied having
contraband on her even once, whereas T.W. did twice, and the officers in Brown
never asked to search her (as they did here). In short, from the approach to the
questioning, the coerciveness in this encounter was far greater than it was in Brown.
25
The same is true of United States v. Drayton, 536 U.S. 194 (2002), on which
the government also relies. The officers in Drayton were in plainclothes when they
boarded a crowded bus, and they engaged numerous passengers in conversation
before reaching the defendants. Id. at 197-98. Those circumstances, unlike here,
did not suggest that the defendants were the focus of an inquiry into criminal
wrongdoing. As to their questioning, the officers never asked—and the defendants
never denied—having contraband on them. Instead, an officer identified himself
and then cut straight to asking for permission to search the defendants’ bag, and then,
their persons, and the defendants agreed. Id. at 198-99. As with Brown, the officers’
conduct in Drayton was far less coercive both in how they approached the defendants
and in how they questioned them.
The government also highlights Burton v. United States, 657 A.2d 741 (D.C.
1994), which resembles Drayton, in that several plainclothes police officers with
their weapons concealed boarded a bus with the intent to interview its passengers,
despite having no reason to think any particular passenger was engaged in criminal
behavior. Id. at 742, 744. The officers spoke with a passenger before getting to
Burton, evincing that he was not the focus of any police inquiry. Id. at 742. While
the questioning of Burton is similar to what we have here—Burton denied having
any drugs or guns on him before agreeing to a search—we gave no consideration to
26
that questioning in our seizure analysis, as it appears Burton himself attributed none
to it. Id. at 744 (“Burton maintains that a seizure occurred . . . emphasizing” that the
officers were situated as to “block[] the exit of the bus.”); see also Mills v. District
of Columbia, 259 A.3d 750, 758 (D.C. 2021) (opinions lack precedential value when
“the judicial mind was not focused on the issue we now confront”) (citation omitted).
Instead, we focused on how the plainclothes officers approached Burton on a bus
with other passengers, and “request[ed] permission to speak with [Burton] rather
than demanding” he do so, unlike here, where there was no such request or
affirmative indication that T.W. could decline to speak with the officers. Burton,
657 A.2d at 744. On the whole, T.W. was met with a substantially greater showing
of police authority, focused exclusively on him, than was Burton. 10
The dissent highlights Kelly v. United States, which bears no resemblance to
this case in how officers approached the suspect; Kelly involved two officers on foot
who approached an individual in a crowded train station and engaged in a fair bit of
small talk before asking a single accusatory question. 580 A.2d 1282, 1284 (D.C.
10
The government also relies upon United States v. Gross, 784 F.3d 784 (D.C.
Cir. 2015), an opinion that is not binding on us and is readily distinguishable for the
same reasons we articulated in Golden, 248 A.3d at 939-40. In sum, T.W. “was met
with a significantly greater show of authority by the police” than was Gross, and
Gross never denied having contraband on him before police asked to see his
waistband. Id. at 940.
27
1990). Kelly stands for the proposition that an individual is not seized merely
because he has been asked an accusatory question, and was then (after an initial
denial) asked to consent to a search. Id. at 1284-86. We take no issue with that
proposition. Like most Fourth Amendment inquiries, the surrounding circumstances
matter. In this case, there is a strong argument that the manner in which police
officers approached T.W. by itself—putting aside their questions—amounted to a
seizure. T.W. froze and raised his hands in the air in response to the approach alone,
which we have already opined was a natural response to the show of authority he
faced. The same is not remotely true of Kelly. The circumstances in Kelly simply
did not present any similar show of force accompanying the lone accusatory
question.
More than relying on any particular case, though, the government and dissent
stress that this encounter was brief and the officers were cordial during it. There is
no disputing that, and we acknowledge that both factors provide at least some
marginal support for finding no seizure. But those same factors were present in
Golden, 248 A.3d at 932, and Dozier, 220 A.3d at 938, 946-47, and did not alter our
conclusion that the subjects there had been seized. These factors thus provide no
basis for us to depart from our holdings in those cases. Also, we again caution that
courts should not “attach undue weight to a police officer’s ‘conversational’ tone in
28
speaking to a suspect.” Golden, 248 A.3d at 935 n.26; see also Guadalupe v. United
States, 585 A.2d 1348, 1361 (D.C. 1991). While a harsh and commanding tone
could certainly convey to a person that their compliance is non-optional, a polite and
conversational tone does little to dispel coercion that arises from the content of
officers’ inquiries, or in how they have approached the suspect.
Finally, we note that our conclusion that T.W. was seized is heavily influenced
by the body-worn camera footage. The video footage captures just how jarring the
officers’ approach was in this case in a way that we doubt a dry transcript would
have conveyed. While we have at times stressed the brevity of police encounters as
suggesting the lack of a seizure—typically in cases that predate the proliferation of
body-worn cameras—here the footage demonstrates that the encounter was so abrupt
and fast-moving that it would have been disorienting to any reasonable person in
T.W.’s shoes. The officers did not announce themselves or their intentions, they did
not greet T.W., nor did they stroll up to him in a casual manner. They instead jumped
out of halting vehicles and came upon T.W. with a series of rapid-fire questions,
each indicating they believed T.W. had a gun, as they closed in on him. That
flashbang method of approaching and questioning a subject seems designed to
produce temporary paralysis or flight; reasonable people would not think they are
free to simply disengage and leave the area.
29
C. Responses to the Dissent
Our principal responses to the dissent are above, as it has failed to distinguish
Golden or Dozier in any meaningful way. We are bound by those precedents, so
there is little more of import to say. Still, the dissent (1) offers some semantic
critiques that are immaterial to the Fourth Amendment calculus, (2) offers some
factual critiques that are unfounded, and (3) appeals to an anecdote about the
“‘skyrocketing’ level of gun violence in our city,” all of which we think warrant
further response. We address those points in turn.
1. The Dissent’s Semantic Critiques
The dissent begins with two semantic critiques, first positing that the officers
pulled not into an “alley,” but a “driveway.” This is a quibble of no conceivable
moment, but to be clear, the officers pulled off of a road onto a narrow stretch of
asphalt, with several apartment buildings on one side and a partially fenced off and
unimproved plot of land on the other, which dead-ends in a parking lot (presumably
for use by the apartments’ tenants and guests). We happen to think that is better
described as an alley than a driveway, which typically connotes a short path for cars
that leads up to a particular house or building. See American Heritage Dictionary at
564 (3d ed. 1992) (driveway: “A private road that connects a house, a garage, or
30
another building with the street”). “Driveway” also tends to conjure images of an
even more confined space than an alley—we have never described the alley as
narrow or “very narrow,” as the dissent might be read to suggest—so we fail to see
how our word choice is uncharitable to the government, as the dissent complains.
The dissent’s second semantic critique is to take issue with us describing how
officers “followed [T.W.] into that alley,” despite the fact that they unquestionably
did just that. The dissent’s point seems to be that it would not have been obvious to
T.W. that officers were following him, but once again—even assuming that were
true 11—that makes no difference to our Fourth Amendment analysis. Our obligation
to draw reasonable inferences in the government’s favor in this posture does not
oblige us to omit undisputed facts.
11
It does not follow from the fact that T.W. did not see the police vehicles in
the street that he therefore would not have understood the officers had followed him,
as the dissent posits. Without seeing the cars on the street, someone in T.W.’s shoes
still might reasonably think that two vehicles hurriedly pulling into the alley mere
seconds behind him and stopping on both sides of him, with nobody else around,
had followed him there. But either way, we have placed no weight on this fact.
31
2. The Dissent’s Factual Critiques
The dissent next offers two factual critiques. It asserts officers from the rear
vehicle began approaching only “[s]everal seconds after the brief verbal exchange
and while Officer Gendelman was conducting the pat-down.” Post at 42. That is
clearly contrary to the video evidence. Officer Ewing’s body-worn camera footage
shows that the rear passenger door of the second cruiser is open about five seconds
before T.W. consents to a search, around when the questioning begins. 12 While the
video then cuts away from the rear vehicle for a couple of seconds, so that it is
impossible to pinpoint when the first officer exits the rear vehicle, the video cuts
back to the rear vehicle just before T.W. consents to any search, and it shows one
officer had completely exited the car and another at least had their door open. The
events are close in time, to be sure, but the government is entitled only to reasonable
inferences in its favor, not clearly wrong ones.
Next, the dissent insists that this was not a fast-moving encounter because the
officers walked, but did not run or jump, from their vehicles after quickly pulling
12
It is difficult to pinpoint, because the audio on the body-worn camera
footage only picks up when the officer asks “You sure,” but the rear passenger door
of the second cruiser is open before that penultimate question.
32
them up to T.W.’s position and immediately exiting. On this point the dissent
ignores the fact that the officers hurriedly pulled their vehicles right up to T.W., so
that by the time Ewing exited his vehicle, he had no need to run. He was already
upon T.W., and he could not have taken more than a stride if he had attempted to
run toward him. And when one refers to jumping out of a vehicle, they typically
mean getting out quickly—which the officers indisputably did here—not literally
jumping out of it (which is quite tough to do from a seated position in a sedan). So
we again believe our description is perfectly apt, though we acknowledge the
officers did not spring forth from their vehicles as one might expect a cat to do.
3. The Dissent’s “Addendum”
The dissent closes with an “addendum.” It begins with a single cherry-picked
statistic and adds an anecdote about an overheard but unidentified “press report” to
suggest that there is a “‘skyrocketing’ level of gun violence in our city,” as if to
insinuate the Fourth Amendment’s protections should ebb when crime rates rise. If
one actually adhered to that doctrinal view—we do not—then one might expect them
to be far more rigorous in their statistical approach than the dissent is. For instance,
because T.W. was stopped in 2018, the dissent should explain why its statistical
approach is not indexed to 2018, when violent crime in the District was the lowest
33
it had been in decades. 13 And perhaps the dissent can also explain why, in the
previous decades of waning violent crime in the District, our court has never looked
to crime rate data to justify more robust Fourth Amendment protections than we
recognized in, say, 1990, when we decided the dissent’s principal authority (Kelly)
and the violent crime rate was considerably higher by every measure than it is today.
More to the point, the dissent’s closing has no place in a judicial opinion
where the only question is whether T.W. was seized under the Fourth Amendment.
“If high crime rates were grounds enough for disposing of Fourth Amendment
protections, the Amendment long ago would have become a dead letter.” Samson v.
California, 547 U.S. 843, 865 n.6 (2006) (Stevens, J., dissenting). Moreover, we
generally leave policy judgments for the legislature, and the D.C. Council has passed
temporary legislation, with permanent legislation pending congressional review,
precluding consent searches under circumstances like those presented here. See
Comprehensive Policing and Justice Reform Amendment Act of 2021, Subtitle F,
“Limitations on Consent Searches,” D.C. Act 24-781, 70 D.C. Reg. 953 (transmitted
13
See District of Columbia: Trend of Violent Crime from 1985 to 2021, FBI
Crime Data Explorer, https://cde.ucr.cjis.gov/; https://perma.cc/EQE5-D6WW (last
visited Apr. 5, 2023) (providing data on violent crimes in the District from 1985 to
2020, and showing D.C.’s violent crime rate in 2018 as the lowest over that 36-year
span; in every year from 2017 to 2020 the violent crime rate was lower in the District
than at any point between 1985 and 2016).
34
to Congress Jan. 26, 2023). That legislation requires officers to inform subjects that
they have “a legal right to decline to consent to the search,” and that a “search will
not be conducted if the subject refuses to provide consent.” Id. (adding D.C. Code
§ 23-526). While that legislation post-dated the stop here, and so does not inform
our decision, we note the Council’s current judgment that people who are confronted
by police in the community and asked to submit to a search need to be reminded of
their rights in the stress of the moment.
* * *
Considering the number of officers who approached T.W., the manner in
which they approached him, and their persistent accusatory questioning despite
T.W.’s repeated denials that he had a gun, we conclude that T.W. was seized in
violation of his Fourth Amendment rights. We reverse his convictions.
So ordered.
THOMPSON, Senior Judge, dissenting: After appellant T.W. consented to a
pat-down by police officers, the officers recovered from his waistband a gun that
contained twenty-nine rounds of ammunition (one in its chamber) and a magazine
— a large capacity ammunition feeding device — that had a capacity of thirty-one
35
rounds. The trial court found him guilty of multiple weapons offenses after denying
his motion to suppress the gun and ammunition. Appellant now seeks a reversal of
his convictions, claiming that he was unconstitutionally seized prior to the search,
that his consent was involuntarily given, and that in any event his consent was only
to a pat-down, not to the subsequent shirt-lifting search that enabled officers to see
the gun and magazine.
My colleagues in the majority today grant appellant the relief he seeks,
emphasizing that their conclusion that he was seized prior to his consent to a pat-
down is “heavily influenced by the [officers’] body-worn camera [BWC] footage,”
and agreeing with appellant that he was seized when the officers, who had asked
appellant whether he had a gun, did not take his negative response at face value and
subsequently asked him whether he was sure and whether he would consent to a pat-
down. For the reasons that follow, I dissent from the holding that appellant was
unlawfully seized.
I.
I will begin my analysis by briefly summarizing the well-established legal
principles that must guide our analysis. I then briefly recount the facts, adhering to
our obligation to view “the facts and all reasonable inferences therefrom . . . in favor
36
of sustaining the trial court ruling.” Peay v. United States, 597 A.2d 1318, 1320
(D.C. 1991) (en banc). 1 Along the way, I shall point out how, by contrast, my
colleagues repeatedly have presented the facts and drawn inferences in a light
favorable to finding a Fourth Amendment violation (and, as I shall also show, in a
light favorable to likening the circumstances in this case to those of recent cases in
which this court has found unlawful seizures).
The Fourth Amendment’s protections against “unreasonable searches and
seizures” are triggered when a person is seized by the police, either during an
investigative detention or an arrest. U.S. Const. amend. IV; Dozier v. United States,
220 A.3d 933, 939 (D.C. 2019). A seizure must be supported by a certain level of
suspicion, prior to initiation, that criminal activity has occurred — i.e., by
reasonable, articulable suspicion for an investigative detention, and by probable
cause for an arrest. Id. In this case, no one contends that there was reasonable,
articulable suspicion to justify an investigative detention of appellant prior to the
officers’ encounter with appellant or prior to the verbal exchange between the
officers and appellant that preceded the pat-down.
1
See also Brooks v. United States, 367 A.2d 1297, 1304 (D.C. 1976) (“[W]e
are to determine if the denial of the motion to suppress is supportable under any
reasonable view of the evidence.”).
37
There has been a seizure if, under the totality of the circumstances, “the police
conduct would have communicated to a reasonable person that the person was not
free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 940
(quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). “The hypothetical
reasonable person is an innocent person.” Id. “The question is ‘not what the
defendant himself . . . thought, but what a reasonable [individual], innocent of any
crime, would have thought had [they] been in the defendant’s shoes.’” Golden v.
United States, 248 A.3d 925, 934 (D.C. 2021) (alterations in original) (quoting
United States v. Goddard, 491 F.3d 457, 460 (D.C. Cir. 2007)).
Police may effectuate a seizure of a person without use of physical force
through a “show of authority” to which the defendant submits, generally through
compliance with the officers’ orders or requests (such as by staying in place rather
than continuing on his or her way). Id. at 935; see also id. at 934, 936 (concluding
that a seizure occurred “once Officer Vaillancourt began asking Mr. Golden to
expose his waistband to enable the officer to confirm that he was not carrying a gun
there,” not when “four police officers suddenly drove up and stationed their
unmarked SUVs perpendicular to each other, in front of him (blocking his path) and
to his left as he walked down the street alone at night”). But we have rejected the
notion that “a Fourth Amendment seizure takes place any time a person would feel
38
some pressure to respond to an officer’s questions and requests.” Dozier, 220 A.3d
at 943; see also id. at 947 (reasoning that “[n]o single circumstance in this case
[including the fact that a police vehicle carrying four uniformed and armed officers
drove into an alley after Mr. Dozier] was by itself sufficient. . . to amount to a
seizure,” and concluding that Mr. Dozier was seized “by the time he complied with
the officers’ request to put his hands on the alley wall so that they could pat him
down”). Further, staying in place may not amount to compliance if the person has
another reason for staying put. Bostick, 501 U.S. at 436 (“[T]he mere fact that
Bostick did not feel free to leave the bus does not mean that the police seized him.
Bostick was a passenger on a bus that was scheduled to depart. He would not have
felt free to leave the bus even if the police had not been present.”). Moreover, that
“police officers are inherently figures of authority” does not necessarily mean “that
their presence results in non-consensual encounters.” Kelly v. United States, 580
A.2d 1282, 1285 (D.C. 1990).
A police officer does not manifest a show of authority “by merely approaching
an individual on the street or in another public place, by asking him if he is willing
to answer some questions, [or] by putting questions to him if the person is willing to
listen.” Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion). But such an
encounter may evolve into a seizure “if the police ‘convey a message that
39
compliance with their requests is required’” or that they “will not allow the suspect
to terminate the inquiry and depart before satisfying the officers’ concerns.” Golden,
248 A.3d at 935-36 (quoting Bostick, 501 U.S. at 435). Such a message may be
conveyed by “repeated or insistent (and implicitly accusatory) questions or requests
designed to ferret out whether someone stopped on the street is in possession of
weapons or contraband, particularly in conjunction with other intimidating or
coercive circumstances.” Id. at 935; see also id. at 936 n.27 (citing cases where
police were determined to have seized a person through repeated and insistent
questioning). We have explained, however, that implicitly accusatory questioning,
the presence of multiple police officers, the occurrence of the encounter in a location
that is secluded or out of public sight, and the fact that a person is by himself do not
“without more” render an encounter a seizure; rather, such factors “provide
important context” for any additional circumstances present in the interaction that
“materially increase[] its coerciveness.” Jones v. United States, 154 A.3d 591, 596
(D.C. 2017). 2 We recognize that “the Fourth Amendment calculus tolerates a
measure of official pressure in exchange for needed cooperation from the public with
2
One of the additional factors in Jones that increased the coerciveness of the
encounter was that the officer asked his partner to perform a warrant check that was
still underway when the officer asked to inspect the cigarette box Jones was holding.
Jones, 154 A.3d at 596-97; see also Dozier, 220 A.3d at 942 (noting that a warrant
check “would send a strong signal to a reasonable innocent person that his liberty
would be restrained while the check was in progress”).
40
police activities in safeguarding safety and assisting with law enforcement.” Dozier,
220 A.3d at 943.
II.
At the suppression hearing, Officer Dmitry Gendelman testified that on March
3, 2018, at approximately 5:31 p.m., he and other uniformed members of the
Metropolitan Police Department (“MPD”) “Crime Suppression Team” were on
patrol and noticed appellant outside an apartment building at 2348 Ainger Place,
S.E. The BWC footage from cameras worn by Officer Gendelman and Officer
Ewing shows that the encounter occurred during daylight. Officer Gendelman
testified that he and his partners observed appellant walk toward the sidewalk, look
out at the driveway as the officers approached, and then “abrupt[ly]” pivot and walk
back toward the direction from which he had come. Officer Gendelman considered
this to be suspicious or “elusive” behavior that warranted investigation, but he
acknowledged that he did not see any bulge in appellant’s clothing and that appellant
was walking normally and did not “blad[e]” his body away from the officers.
The BWC footage shows a “driveway,” perpendicular to Ainger Place,
running parallel to the building, and the BWC footage shows that a series of bollards
separate the driveway from a grassy walkway that runs alongside the 2348 building,
41
along both sides of the building entrance. The police vehicle in which Officer
Gendelman and Officer Ewing were riding turned into the driveway, with the
officers losing sight of appellant for a while but eventually pulling up in front of
him, where he was standing at the building entrance. By the time the police vehicle
stopped, appellant was walking toward the officers’ vehicle with his hands up
(having, as the videos show, removed them from his pockets). The officers had not
asked appellant to put his hands in the air. 3 Officers Gendelman and Ewing exited
their vehicle and approached appellant. Officer Gendelman testified that he was
“mindful . . . not to block” or encircle appellant, so he repositioned himself to be on
the same side of appellant as Officer Ewing. Officer Gendelman testified that the
officers stood about three to five feet away from appellant.
Officers Gendelman and Ewing spoke to appellant in a “[c]ordial,”
conversational tone, interacting with him for a total of “[l]ess than 30 seconds.”
Officer Ewing spoke first, asking appellant whether he had a gun on him. Appellant
responded that he did not. Officer Ewing then asked appellant, “You sure?” to which
appellant responded, “Yeah, I’m positive.” Officer Gendelman then asked whether
3
The trial court (the Honorable Todd Edelman) found that appellant raised
his hands “before anything had been said to him at all.”
42
he could pat appellant down, “just to make sure.” Appellant replied, “Yeah,” and
(without being directed to do so) held his arms out. Officer Gendelman replied, “My
man,” and proceeded to pat appellant down. 4 Officer Gendelman testified that he
felt, through appellant’s jacket and under his waistband, a “hard, rectangular object
inconsistent with the human anatomy that [he] recognized to be a magazine for a
handgun.” He then lifted appellant’s jacket and saw a handgun magazine
“protruding” from appellant’s underwear. When the officers then put appellant’s
hands behind his back to handcuff him, appellant remarked, “You got me, you got
me, you got me.” The entire encounter up to this point had lasted only a few seconds.
While the above-described encounter was going on, a second and third police
car, which had been patrolling together with the first vehicle and which each carried
multiple officers, pulled in behind the first police vehicle, about fifteen feet away
from appellant. Several seconds after the brief verbal exchange between appellant
and the first two officers, and while Officer Gendelman was conducting the pat-down
described above, other officers from the second and third vehicles began walking
toward the area where appellant and Officers Ewing and Gendelman were standing.
4
According to the online Free Dictionary, “my man” is “[a]n exclamation of
appreciation . . . .” My Man, THE FREE DICTIONARY, https://idioms.thefree
dictionary.com/my+man; https://perma.cc/8XV4-MUNY (last visited April 7,
2023).
43
Appellant, who was twenty-one years old at the time of the incident, testified
that he was outside the apartment building, where he had been visiting his aunt, while
he waited for his ride to arrive. He testified that he had not seen the police when he
turned and walked back toward the building, but first saw the police when a caravan
of at least three marked police cars “swarmed” him. He testified that officers
emerged from the vehicles asking, “Where the guns at?” 5 and that he put his hands
up and then consented to a pat-down because he was scared and nervous, never
having been arrested before. Appellant testified that he had, however, been stopped
by police before, “[j]ust walking randomly in life before. Growing up.”
Appellant acknowledged that the officers did not “physically put hands on”
him before the pat-down. He testified first that he “wanted to walk away” but “didn’t
feel like [he] could,” but subsequently testified that he “wanted to walk, but [he]
didn’t know if [he could] or not.” He acknowledged that he had room to walk past
the police cars and that no officer pulled out a gun.
5
Judge Edelman found that the officers’ first question was “essentially do
you have a gun,” not the accusatory question (“where the guns at?”) to which
appellant testified. The first question is not audible on either of the BWC videos,
but the officers’ follow-up question, “You sure” seems to confirm Officer
Gendelman’s testimony that appellant gave a “no” (or other negative) response to
the first question (rather than a response such as “what guns?” which might have
followed the accusatory question appellant described).
44
My colleagues in the majority identify a number of factors that they say
contribute to a conclusion that appellant was seized before he consented to a pat-
down. But, as the following multiple examples demonstrate, their conclusion
improperly rests on a view of “the facts and all reasonable inferences therefrom” in
a light that favors finding a Fourth Amendment violation, rather than on a view “in
favor of sustaining the trial court ruling.” Shelton v. United States, 929 A.2d 420,
423 (D.C. 2007).
To begin, my colleagues say that the officers “quickly pulled into an alley
after [appellant].” Ante at 10. I acknowledge that during his testimony appellant
referred to the driveway where the officers’ vehicles parked as an “alley,” but, as
appellant’s trial counsel acknowledged in his suppression-motion argument, an
“alley” is “bordered by buildings.” 6 The area involved here was the driveway to the
front door of the 2348 building, and across from it was not another building or
buildings, but an open grassy area; as Judge Edelman observed, the encounter
occurred in a “large open space.” This is more than semantics: there was no “very
narrow alley” in this incident as there was in Jones, see 154 A.3d at 596 (quotation
6
According to the online Free Dictionary, an “alley” is “a narrow lane or
passage, esp. one between or behind buildings.” THE FREE DICTIONARY,
https://www.thefreedictionary.com/alley; https://perma.cc/2JJX-A485 (last visited
April 7, 2023).
45
marks omitted); and while appellant was by himself in front of the apartment
building, he was not in a “secluded alley . . . enclosed on both sides by brick walls,
[into which] no passersby could see . . . unless they were right at the entrance of one
end or the other,” Dozier, 220 A.3d at 942.
My colleagues further say that the officers “followed [appellant] into an alley”
(emphasis added). Ante at 11. However, appellant testified that he did not even see
the police until they pulled up in front of the building, and thus he did not perceive
that he was being “followed.” 7 As Judge Edelman aptly remarked: “[A]s [T.W.]
himself acknowledged, it didn’t seem like they were following him and couldn’t
have, because he didn’t even notice the police cars when they first saw him,” such
that it was not “accurate to say that the officers followed [appellant] in any way
that’s meaningful in this context.” For all that a reasonable, innocent person in
appellant’s position would have perceived, the officers could have been pulling up
to look for someone inside the apartment building, rather than targeting that
reasonable person. An onlooker would have perceived no “clear purpose to
confront” appellant, ante at 11, just because the police pulled up to a building
7
Appellant apparently did not walk back toward the building entrance by
walking along the driveway — elsewise the officers would not have lost sight of
him.
46
entrance in front of which he was standing. If appellant removed his hands from his
pockets and raised his hands because he thought the officers’ arrival was directed at
him, the reasonable inference on the factual record is not that he did so because he
believed he had been “followed.” A reasonable inference is that he did so because
of his consciousness of guilt (of having an unlawful, high-capacity firearm in his
waistband), or that he did so because, as an African-American man, he had learned
the importance of allowing his hands to be seen when police officers approach. 8
Whichever is the more reasonable inference, “the character of [appellant’s] response
should not govern the constitutionality of the officer[s’] conduct.” 9
8
As we noted in Dozier, “[f]or generations, black and brown parents have
given their children ‘the talk’ — instructing them . . . to . . . always keep your hands
where they can be seen . . . out of fear of how an officer with a gun will react to
them.” Id. at 944 n.15 (quoting Utah v. Strieff, 579 U.S. 232, 254 (2016)
(Sotomayor, J., dissenting) (internal citations omitted)).
My colleagues opine that appellant’s immediate reaction to the officers’
approach — raising his hands in the air — was a “natural response” to the officers’
“show of authority,” ante at 11 (which by that time had consisted solely of the police
vehicle pulling up to the front door of the apartment building and stopping). But,
again, appellant’s reaction of taking his hands out of his pockets and raising his arms
may have had more to do with fear of some police officers’ aggressive and violent
conduct toward African-American men than with a “show of authority.”
9
California v. Hodari D., 499 U.S. 621, 645 (1991) (Stevens, J., dissenting).
47
My colleagues go on to say that the officers “positioned their vehicles in a
manner that boxed [appellant] in, cutting off his two most obvious escape paths and
signaling that he was not free to leave.” Ante at 10. They say that “the trailing
vehicle parked behind [appellant], so that the officers had him pinned in” and that
“[t]he officers in the front vehicle then approached [appellant] quickly from both
sides in a pincer maneuver, with one approaching from his right and the other
circling around the back of the vehicle to approach [appellant] from his left.” Ante
at 18. (My colleagues take pains to say that Officer Gendelman “circl[ed] around
the back of the vehicle to approach [appellant] from his left,” ante at 18, but that
would have been the closest approach route for the officer, who had been seated on
the back driver’s side of the vehicle. But again, rather than show any “pin[ning] in,”
the BWC footage shows a grassy pedestrian pathway parallel to the apartment
building that ran along both sides of the building entrance and that was separated
from the driveway by a long line of bollards. (To say, as my colleagues do, that the
visibly well-trodden pathway is not a “walkway in any ordinary sense,” ante at 20,
is another good example of their failure to view the evidence in a light favorable to
sustaining the trial court’s suppression ruling.) The videos show clearly that the
pedestrian pathway was unblocked and available to appellant (as was the unlocked
48
building front door). 10 Moreover, my colleagues’ “boxed in” and “pincer maneuver”
characterizations entirely neglect the testimony that Officer Gendelman, the second
officer to approach appellant, was careful to reposition himself so that both officers
were standing on the same side of appellant. Further, to the extent the police vehicle
cut off appellant’s path forward, it is noteworthy that the path forward led to an open
grassy area, not to the street where appellant might have caught his ride. In short,
appellant was not boxed in, and the evidence does not support an inference that
appellant would have reasonably understood the officers to be blocking his exits.
My colleagues describe the encounter between appellant and the officers as
“abrupt and fast-moving” after the officers “jumped out” of their vehicles, ante at
28, but the BWC footage shows none of that. The Gendelman video shows Officer
Ewing walking at a normal pace (if not slowly) toward appellant as he exits the front
passenger seat of the vehicle. Similarly, the Ewing video shows Officer Gendelman
moving at the same pace as he walks around the back of the vehicle toward appellant.
The Ewing video also shows Officer Ewing opening the front passenger door as soon
10
My colleagues concede that appellant “might have gone inside the
apartment building, presuming the door was unlocked.” Ante at 18 (emphasis
added)] But appellant testified that the door was unlocked.
49
as the vehicle comes to a stop, but it does not show the officer moving abruptly out
of the vehicle. 11 The BWC footage shows appellant standing calmly and conversing
calmly with the officers (Officer: “I appreciate you not fighting.” Appellant: “I’m
not.”); appellant does not appear to be scared or nervous.
My colleagues further say that “four officers were approaching T.W. before
T.W. agreed to be searched.” Ante at 10. That assertion is quite a stretch. The
Ewing video shows that appellant gave his consent before any of the additional
officers lessened the distance between where their vehicles were parked and where
appellant was standing. (The videos do not capture whether a third officer might
have exited the driver side of the second vehicle before appellant gave his consent,
but we have the testimony of Officer Gendelman that “when I’m patting him, [the
additional officers] might be just like stepping out of their vehicle coming towards.
So maybe they’re 15 -- approximately 15 feet away” and his estimate that “at the
time that I’m patting [T.W.], they would have been even further back. Maybe 15,
20 feet.”) In other words, before appellant was “swarmed,” Officers Ewing and
Gendelman had already obtained his consent to a pat-down.
11
Moreover, a portion of the early part of the Ewing video shows only the
door of the apartment building, and thus does not show that the officers’ movements
were so abrupt as to be disorienting.
50
Focusing on the officers’ questions, my colleagues say that the officers asked
appellant “only accusatory questions,” conveying that they believed he had a gun on
him. Ante at 10. But the questions “do you have a gun?” and “you sure?” are not
accusatory. Cf. United States v. Gross, 784 F.3d 784, 788 (D.C. Cir. 2015)
(remarking that an officer’s question, “Do you have a gun?”, “did not accuse Gross
of possessing a gun or committing a crime”). 12 But even accusatory questioning in
the face of an initial denial does not necessarily amount to a seizure, see Kelly v.
United States, 580 A.2d 1282, 1284-86 (D.C. 1990), and I have already shown why
there was nothing about the other circumstances on which my colleagues rely — the
manner in which the officers approached appellant and his raising his hands in the
air in response to their approach — to support a conclusion that appellant was seized
before he permitted the pat-down.
My colleagues also say that the officers’ asking whether they could do a pat-
down “just to make sure” “manifest[ed] their disbelief in [appellant,] and
12
The context is quite different, but it occurs to me that the questions
themselves are no more accusatory than Transportation Security Administration
agents’ repeated questions about whether passengers passing through security
checkpoints have bottles of water: the questions are designed to focus attention and
to counter the tendency to give unthinking, negative responses (in my experience,
frequently given by passengers who, much to their chagrin, are found upon screening
to have forbidden bottles of water in their carry-on bags).
51
suggest[ed] they were not going to let him walk away unless he could alleviate those
suspicions.” Ante at 10. But that is to look at the evidence in the light most favorable
to finding a seizure. I believe that viewing the evidence in a light favorable to
sustaining the trial court’s ruling requires a recognition that a crime suppression team
sets out “proactive[ly]” to recover guns everywhere they might find them; the
officers do not necessarily believe that everyone they question will have a gun, and
the record here gives us no reason to think that a reasonable innocent person in
appellant’s position would have thought otherwise. In the same vein, Officer
Ewing’s “my man” remark, see supra note 4, afforded appellant a reason to
understand that the officers had sought his voluntary cooperation (and that he could
therefore withdraw his consent before the pat-down occurred).
In denying the motion to suppress, Judge Edelman found that the officers’
tones during the encounter were “conversational if not cordial” and that the officers
did not jump out in a particularly aggressive way. Citing the factors set out in United
States v. Mendenhall,13 Judge Edelman reasoned that the portion of the encounter
13
446 U.S. 544, 554 (1980) (opinion of Stewart, J.) (“Examples of
circumstances that might indicate a seizure, even where the person did not attempt
to leave, would be the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the officer’s request
might be compelled.”).
52
prior to the search was not a seizure because it was “quite brief” — as my colleagues
acknowledge, the encounter lasted about ten seconds from when the first officers
exited their vehicle to when the pat-down search began, ante at 4; and because the
presence of the two officers was “minimally threatening,” “[w]eapons were not
displayed or touched,” appellant was not touched, there were no sirens or flashing
lights, no commands were given, and the encounter occurred “in an open area on a
public street and sidewalk in front of the building” where appellant “had ample space
to walk away or back into the building.”14 Adding to those factors, I believe it is
helpful to juxtapose appellant’s acknowledgment that he “didn’t know” if he could
walk away or not against the principle that “a person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not
free to leave.” Mendenhall, 446 U.S. at 554 (emphasis added) (opinion of Stewart,
J.). Appellant’s uncertainty — experienced while he knowingly and unlawfully had
a high-capacity loaded firearm in his waistband — gives us no reason to think that a
reasonable innocent person in appellant’s position would have believed he was not
free to leave and to ignore or refuse the officers’ requests.
14
“For many of the same reasons,” the court did not find that the consent to
the search was coerced.
53
Viewed in a light favorable to sustaining the trial court’s ruling instead of in
a light favorable to finding a Fourth Amendment violation, the evidence and
reasonable inferences therefrom amply support Judge Edelman’s denial of the
suppression motion. Our review, however, is de novo, Dozier, 220 A.3d at 940, and
my colleagues assert that Golden “compels” us to hold that there was a seizure in
those ten seconds or less before the officers asked for and obtained appellant’s
consent to a pat-down, ante at 14, and that Dozier likewise “counsels in favor of
concluding that [appellant] was seized.” Ante at 21. Not so. 15
Mr. Golden was walking down a public street at night when two unmarked
cars carrying four members of the MPD Gun Recovery Unit drove past him, heading
in the same direction in which he was walking. See 248 A.3d at 931. As Mr. Golden
approached an intersection, one of the police cars turned the corner and stopped
directly in front of him while the other car stopped just before the intersection,
perpendicular to the first car, partially surrounding (and clearly targeting) Mr.
Golden, blocking his path, and keeping him from continuing along the way toward
15
Indeed, it would be surprising if either case compelled an identical ruling
here. As the Supreme Court observed in Terry v. Ohio, 392 U.S. 1 (1968), “[s]treet
encounters between citizens and police officers are incredibly rich in diversity,” id.
at 13. Thus, it should be rare that the result of one Fourth Amendment case will
dictate the result in another.
54
wherever he had been going. Id. at 931, 936. 16 The officers remained inside the
vehicles (with their windows down), but one of the officers asked Mr. Golden “in a
conversational tone” whether he was carrying any weapons. Id. at 932. Mr. Golden
replied that he was not. Id. The officer then asked, “[C]an you just show me your
waistband[?]” Id. (alterations in original). Mr. Golden, who was wearing a shirt
with a sweatshirt tied around his waist, lifted up one side of his shirt in response. Id.
16
Cf. Jones, 154 A.3d at 595-98 (declining to hold that an officer’s repeated
questioning of Jones, which would have conveyed to a reasonable person that the
officer suspected him of something, rendered the encounter a seizure; concluding,
however, that additional circumstances compelled the conclusion that there was a
seizure, including that the officer “effectively hemmed [Jones] in” after stopping the
police cruiser in a very narrow alley, thus “substantially reduc[ing] the ease with
which [he] could have walked on or otherwise avoided the encounter”); In re J.F.,
19 A.3d 304, 309 (D.C. 2011) (concluding, given the totality of the circumstances,
which included an officer’s order that J.F. remove his hands from his pockets and
the officers’ continued holding of J.F.’s companion even after no contraband was
found on his person, that there was a seizure prior to the officer’s request for consent
to search J.F. because “the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go about his
business”); Jackson v. United States, 805 A.2d 979, 988 (D.C. 2002) (reasoning that
when Jackson “was asked to turn around (apparently in preparation for a frisk), and
the officer touched Jackson’s jacket, the police crossed the critical line between
consent and coercion” (internal quotation marks omitted)); Hawkins v. United States,
663 A.2d 1221, 1224-26 (D.C. 1995) (concluding that a seizure occurred where
officers approached Hawkins while he was in his car (which was double-parked and
had its engine running), asked him to park and turn off his ignition, positioned
themselves beside his driver’s side door and at the front passenger door, and then
asked him three times whether he was “packing”; reasoning that the officers
“adopted a posture displaying their authority which communicated very clearly to
appellant that he was not free to simply ignore them and leave”).
55
The officer stated that he could not see Mr. Golden’s waistband because of the
sweatshirt. Id. Mr. Golden then removed the sweatshirt from his waist and held it
out. Id. The officer exited the vehicle at that point, again stating that he was unable
to see Mr. Golden’s waistband because the sweatshirt was blocking his view of it.
Id. The officer asked Mr. Golden, “What do you have?” Id. When Mr. Golden did
not respond verbally, the officer frisked him and found a weapon. Id.In analyzing the seizure issue in Golden, we observed that notwithstanding
the “impressive show of police authority” — “four police officers in two unmarked
vehicles” showing up and pointedly blocking Mr. Golden’s path — a seizure of Mr.
Golden had not occurred at the point when the police asked whether he had any
weapons on him. Id. at 936-37. We said that what happened next, however, “took
the encounter beyond mere questioning.” Id. at 937. We concluded that it was at
the moment when the officer asked Mr. Golden to show his waist that a seizure
occurred. Id. at 937-38.
The facts here are non-analogous in significant ways. The officers, who
parked their vehicles at the building entrance, did not block the route appellant was
walking or park their vehicles in a way that would have conveyed to a reasonable
innocent person that he was a target of investigation. Appellant did remain standing
56
on the sidewalk during the encounter rather than walk away or into the building, but
he had a reason to do so — he was waiting for his ride — that had nothing to do with
the officers’ questions. Cf. Bostick, 501 U.S. at 436 (“Bostick’s movements were
‘confined’ in a sense, but this was the natural result of his decision to take the bus
[that was scheduled to depart]; it says nothing about whether or not the police
conduct at issue was coercive.”). Further, as noted earlier, the bollards that separated
the grassy walkway that ran alongside the apartment building from the driveway in
which the line of police vehicles was parked left appellant with an unobstructed path
of egress. Like in Golden, the officers did ask appellant whether he had a gun, and
they did not take his initial “no” answer at face value; but what they followed up
with was another question (“You sure?”) and a request to consent to a pat-down,
rather than, as with Mr. Golden, what amounted to repeated commands that he
rearrange his clothing to prove he had no contraband.
In Dozier, the officers were part of a “high visibility” foot patrol team that
focused on solicitation of prostitution and drug activity. Dozier, 220 A.3d at 937.
We reasoned from that circumstance that Mr. Dozier (who ran from police after a
pat-down revealed a “bulge” — which turned out to be a bag of cocaine — in his
sock) had reason to believe that the officers who followed him down a “secluded
alley” suspected him of drug activity. Id. at 938, 942. We noted that Mr. Dozier
57
had first ignored the officers’ questions and continued walking away, id. at 938, but
that the officers persisted in asking to speak with him and that when he agreed to
speak with them, asked whether Mr. Dozier had illegal weapons on him. Id. Mr.
Dozier responded, “no” but then lifted his jacket to show that he was not armed. Id.
Despite Mr. Dozier’s “two responses to the officers’ questions,” the officers asked
Dozier “whether he could be patted down for any weapons,” and then requested that
he “place his hands on the [alley] wall.” Id. at 938, 946 (alteration in original)
(internal quotation marks omitted). We noted the officers’ “repeated questioning
and escalating requests” and the setting of a “secluded alley partially blocked by a
police cruiser[.]” Id. at 941. But regarding when a seizure occurred, we held that
Mr. Dozier “was seized within the meaning of the Fourth Amendment by the time
he complied with the officers’ request to put his hands on the alley wall so that they
could pat him down.” Id. at 947.
The evidence here is not analogous. Officer Gendelman testified that his unit
had an “expansive role” in patrolling, not only looking for indications that people
were armed or selling drugs but also responding to citizen complaints about matters
such as loitering and gambling. To the extent that appellant’s perception was not
affected by his consciousness of guilt of possessing an illegal, loaded high-capacity
firearm, the circumstances would have made it seem just as likely that the officers
58
were arriving at the front of the 2348 building to respond to suspected drug activity
in the building or to citizen complaints about other criminal activity, as that the
officers suspected appellant of having a firearm; or just as likely that the officers’
arrival signaled another “random[]” encounter of the type appellant had experienced
before. 17 Moreover, appellant, who readily spoke with the officers and had never
tried to ignore them and walk away, was not in a secluded alley, and, during the
entirety of the few-seconds encounter, the officers never gave him a command to do
anything with his body.
Nor do our other precedents require us to hold in the instant case that there
was a seizure prior to the consensual pat-down. Our opinion in Kelly is instructive.
There, a detective asked whether he could speak with Kelly and then asked Kelly
whether he had any drugs in the shopping bag he was carrying. 580 A.2d at 1284.
17
Although appellant testified that he was “swarmed” by police vehicles, “the
presence of multiple officers wearing police gear, including guns and handcuffs,
does not automatically mean that a stop has occurred,” and “the act of approaching
a person in a police car does not constitute a seizure where the officers do not use
their siren or flashers, do not command the person to stop, do not display their
weapons, and do not drive aggressively to block or control the person’s movement.”
Gross, 784 F.3d at 787-88 (cleaned up). Further, even if a reasonable person would
have understood the officers’ question to appellant about whether he had a gun to
mean that the officers “had singled [appellant] out and partially surrounded him
because they suspected him of being armed and committing a crime at that very
moment,” Golden, 248 A.3d at 937, we concluded in Golden that the same question
by itself did not amount to a seizure. Id. at 937-38.
59
Kelly said, “no.” Id. The detective then asked whether Kelly would have a problem
if the detective searched the shopping bag, and Kelly said “no.” Id. When the
detective looked inside the bag, he found a zip-lock bag containing a white substance
that turned out to be cocaine. Id. We concluded that the detective “did nothing
which would lead a reasonable person to believe that a seizure had taken place.” Id.
at 1286; cf. United States v. Drayton, 536 U.S. 194, 198-200 (2002) (holding that no
seizure had taken place when multiple officers boarded a bus, announced that they
were looking for drugs and illegal weapons, asked to search petitioner’s bag in the
overhead luggage rack, and when they found no contraband in the bag, asked, “Do
you mind if I check your person?”, obtained consent, and found illegal drugs).
For all the foregoing reasons, I would uphold the trial court’s ruling that
appellant was not unlawfully seized. 18
An addendum: According to statistics published on the Metropolitan Police
Department website, as of March 30, 2023, the number of homicides in the District
18
Further, because I also am not persuaded by appellant’s argument that his
consent to the pat-down was involuntary or by his argument that the officers lacked
probable cause to lift his shirt after conducting the pat-down, I would affirm
appellant’s convictions.
60
of Columbia in 2023 is up 31% from the same time last year. 19 As I finished writing
a draft of my dissenting opinion, I had just heard a press report about the
“skyrocketing” level of gun violence in our city. Not only do we have a long-
recognized obligation to view “the facts and all reasonable inferences therefrom . . .
in favor of sustaining the trial court ruling” denying a suppression motion, Peay, 597
A.2d at 1320, but our community’s interest in safety and effective law enforcement
is not well served by an approach to appellate review that favors finding an unlawful
seizure when officers, in a seconds-long exchange, politely ask a citizen whether he
has a gun on him and follow up by asking “you sure?” and seeing whether the citizen
will agree to a pat-down if he gives a “no” response. That approach, I am afraid,
“may exact a high toll in human injury.” Terry v. Ohio, 392 U.S. 1, 15 (1968). This
is not at all to attempt to justify seizures that violate the Fourth Amendment
according to the crime rate, but to recognize that “characterizing every street
encounter between a citizen and the police as a ‘seizure’ . . . would impose wholly
unrealistic restrictions upon a wide variety of legitimate law enforcement practices,”
19
See 2023 Year-to-Date Crime Comparison, METRO. POLICE DEP’T
https://mpdc.dc.gov/page/district-crime-data-glance; https://perma.cc/FQ6J-EDMG
(last visited April 7, 2023).
61
with the result that “the security of all would be diminished.” Mendenhall, 446 U.S.
at 554 (opinion of Stewart, J.). 20
20
My colleagues imply that the current crime statistic I have cited is irrelevant
to a discussion of appellant’s five-year old crime. Ante at 32-33. They know very
well, however, that the effect of the court’s opinion will be felt now, as police
officers presumably will be deterred from engaging in the type of investigatory
exchange involved in this case. My colleagues are quite correct that I have not
attempted a rigorous statistical analysis of the crime data, but my response is that
“we need not ignore the data which do exist simply because further refinement would
be even more helpful.” Maryland v. Wilson, 519 U.S. 408, 413 n.2 (1997). In any
event, I don’t think any of us doubts that our community is plagued by gun violence.
And while we as judges must faithfully apply the Constitution and eschew making
policy decisions that are reserved to the legislature, my addendum is in good
company — Justice Stewart’s opinion in Mendenhall, for one — in not turning a
blind eye to what is occurring around us and the needs of law enforcement.